BILL O'REILLY, HOST: Monday after FNC reported on the new tape, the Obama campaign blasted the issue as an alliance between FOX News, the Drudge Report and John McCain. Totally absurd, of course, but that's what they did.

MEGYN KELLY, CO-HOST, "AMERICA'S NEWSROOM": You know what, Bill. It seems that when I have you on and we talk about tough issues, issues that may be potentially tough for your candidate, this is what you do. You blame FOX. You come out with the best defense is a good offense and start ripping on us.

BILL BURTON, OBAMA SPOKESPERSON: You continually trump up these fake controversies, and you know, have folks on to talk about things that don't…

KELLY: I see, FOX News gives — OK.

BURTON: …have anything to do with the issues that are important.

KELLY: Just so you know, Bill.

BURTON: The issues that are important to the American people.

KELLY: The Center for Media and Public Affairs found that since the conventions, the coverage of John McCain has been 65 percent positive on the network news channels for Barack Obama. Guess how much has been positive for John McCain in the network news? 36.

BURTON: Sure.

KELLY: .36.

BURTON: I did see that study.

KELLY: Rasmussen saying that FOX News…

BURTON: And I think John McCain pays a price. Sure.

KELLY: Here's the bottom line.

BURTON: I get your point, Megyn.

KELLY: I think the viewers — let me finish my point. The people who watch FOX News like our coverage. They think this coverage is fair and balanced. You may not like it, Bill, but answer the substantive question because a lot of viewers…

BURTON: Sure.

KELLY: …have concerns about whether Barack Obama, his comments in 2001, his comments to Joe the plumber, and his past comments about economic justice should give them pause, should give them cause for concern.

BURTON: OK, Megyn. All right, I appreciate the political speech that you are making here that is…

O'REILLY: With us now is the very mean Ms. Kelly, along with her "Is It Legal?" partner Lis Wiehl, who is in shock.

Now you see, you've been on this program too much. I knew this was going to happen to you. You rough up Burton, who's a nice guy, right? Burton's an OK guy.

KELLY: Yes, I like Burton.

O'REILLY: And he's hired to put forth his candidate's point of view. So when they don't like something, they're going to attack. That's what these guys do.

KELLY: Yes. Yes, you know, I've had Burton on my program many times, and we have sparred many times. And of course, you get all the…

O'REILLY: But you looked a little agitated yesterday. What was different?

KELLY: I was agitated yesterday. Because he — I just noticed this pattern with him lately, and I don't know if these are marching orders from Obama or whether this is just Bill Burton, but more and more when we get into issues, as I said, that don't necessarily reflect well on Barack Obama, he turns around and attacks FOX, rather than just answering the question. And you know, I don't like it because it distracts from the issue.

O'REILLY: It's a smoke screen though.

KELLY: Right, exactly. And usually, I'll just skip by that…

O'REILLY: Right.

KELLY: …so we can get to the issue. But it's becoming such a pattern that I really wanted to call him out on it so we can get past that.

O'REILLY: All right.

KELLY: So he and I can continue the debates we've been having.

O'REILLY: Is there any way we can arrest Burton and charge him with anything for being mean to Megyn?

LIS WIEHL, FOX NEWS LEGAL ANALYST: As much as I love Megyn, I'm not sure a mean to Megyn law, I don't think so. But it looks like Megyn knows it's true. Anytime we got into an argument, and you have to attack somebody by saying, you know, you're making a political speech or you sort of do the ad hominem attack, you lose the argument. And Megyn, you handled it brilliantly. Great job.

O'REILLY: Well, wait, wait, wait, look. But here's my question, because I take these guys on all the time. We don't, you know, we haven't used any pundits here on either side for the whole campaign, because I'm just not going to waste everybody's time with talking points. But that's their job. You know, when you book them, you know you're going to get a guy coming in saying if you raise a question that we're not comfortable with — because the McCain people do it, too — you are the bad guy. And in this case they have all the other media backing them up.

KELLY: Well, that's a problem.

O'REILLY: They have everybody backing them up because they're all rooting for Barack Obama.

KELLY: Well, that's the problem. So it's easy for Bill Burton to level that accusation against FOX.

O'REILLY: You do it because you get picked up right away.

KELLY: It's a FOX thing. But listen, you know, the bottom line is anybody who has watched my morning program knows I have been very hard on both sides.

O'REILLY: Are you rooting for McCain?

KELLY: Who cares who I'm rooting for. It's irrelevant. But I've been very hard on John McCain's people and I've been very hard on Bill Burton. Tucker Bounds, I gave him a very hard interview that's all over the Internet. The McCain camp was not happy with it. I've done the same for Bill Burton. If — when both campaigns call me up and complain, I know I've done my job.

O'REILLY: OK, but you do see that you're getting way too out of control and it's because of this program? You do admit that, right?

WIEHL: I'll straighten you out.

O'REILLY: Now we have a very troubling situation in Los Angeles, as you both know.

WIEHL: Right.

O'REILLY: We have our affiliate out there covering a hanging of a Sarah Palin dummy in full view of everyone. And I want to roll this tape. And then we'll see what the legal implications are. Go.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: A disgrace. That's all it is.

UNIDENTIFIED FEMALE: This is America. We're allowed to think and feel anything we want.

UNIDENTIFIED FEMALE: I don't think they mean anything hateful by it. But I can see that it can be misconstrued as hateful.

UNIDENTIFIED MALE: What if somebody did this to Barack Obama? You'd have Jesse Jackson out here, and rightfully so. Al Sharpton. This is disgusting and this must come down.

UNIDENTIFIED MALE: Well, Barack doesn't scare me.

UNIDENTIFIED MALE: That from the creators of the extensive Halloween display that includes pumpkins, ghouls and Halloween jack, and yes, McCain coming out of flames in the chimney and Palin hanging from the eaves.

STEVE WHITMORE, LA COUNTY SHERIFF SPOKESMAN: We've had some people call our station who have been upset, and we understand that. This is Halloween display, and so at this point, it doesn't rise to any criminal level.

UNIDENTIFIED MALE: Now the Secret Service is going to look into it as a precautionary avenue as well.

UNIDENTIFIED MALE: Probably the black-suited men in dark cars around the house, not that they confirm or deny anything. Bottom line say the residents at the home.

UNIDENTIFIED MALE: With any installation art, which is kind of what this is, and that's the business that I'm in. With any art, some people aren't going to like it.

(END VIDEO CLIP)

O'REILLY: Installation art. I love these guys. All right. If it is Barack Obama, it's a hate crime, correct?

WIEHL: It's a hate crime because it's color, religion, or national origin. Gender is not part of the federal hate crime or the state crime level. So the only thing you could look at for a charge, I think, here — and I don't think we're there yet — is a threat against a VP nominee.

O'REILLY: And that's not going to happen.

WIEHL: I don't see that happening here.

O'REILLY: But just define that a little bit further. If it's Barack Obama, it's a hate crime because of race.

WIEHL: Because of race.

O'REILLY: OK.

WIEHL: Because you have to be able to go inside the person's head, and saying some part of that…

O'REILLY: But what if they said, I'm going to hang Barack Obama but it's a Halloween display?

WIEHL: It's a Halloween — and that would be…

O'REILLY: Would that be a mitigating…

KELLY: That's not a crime. It's in bad taste, but not a crime.

O'REILLY: So all you have to do is say it's a Halloween display…

KELLY: Right.

O'REILLY: …and you can do whatever you want.

KELLY: Well, it better be Halloween or close to it.

WIEHL: Right.

KELLY: But no, the Supreme Court has been very protective about displays like this. In a case not too long ago found that burning crosses placed on somebody's lawn could be upheld under certain circumstances as free speech. And they're not going to crack down on any Halloween display.

O'REILLY: OK, but public outcry has been muted in West Hollywood, a very liberal part of Los Angeles. If it were Barack Obama, even under the aegis…

WIEHL: There would be more, right.

O'REILLY: Those people would be in danger.

KELLY: Well, it's happened.

O'REILLY: Those people would be in danger.

KELLY: By the way, it's happened. We get a lot of mail from our viewers this morning saying if this were Barack Obama, can you imagine what would have happened? They've done it. Sadly this October has brought things like that, showing a Barack Obama doll in Oregon I think it was and Ohio…

O'REILLY: Oh, I didn't see any of that.

KELLY: You know, it happened. I looked it up. And the FBI was investigating.

O'REILLY: But do you know how long that's been hanging there though? I mean, it happens, but it's gone because somebody sees it.

KELLY: Yes.

O'REILLY: And look, this is bad behavior no matter what, you know. Installation art, you know, what you can do with it, pal. It's bad behavior. I understand the freedom of speech aspect of it.

WIEHL: Right.

O'REILLY: I got it. And I understand the difference between that and Barack Obama because of the historical implications.

WIEHL: Exactly.

O'REILLY: There's a violent historical implication there. But otherwise, it's just bad behavior. Now this came in very late in the day. So Kelly didn't know anything about it, but Wiehl supposedly does. Federal judge in Ohio, Edmund Sargus, appointed by Bill Clinton…

WIEHL: Right.

O'REILLY: …has ruled that homeless people can register to vote in Ohio by providing the bench upon which they sit.

WIEHL: Yes, bench No. 9 can be the address. And the court's ruling is, look, having a home, having a residence, a mailing address is not prerequisite for voting under the law here.

O'REILLY: So anybody can vote.

WIEHL: You have to be 18. You have to be a citizen. You have to, you know…

O'REILLY: Well, how do they know that though? If you have no residence, how can they check you?

WIEHL: Well, in 39 states, they require photo identification or some kind of identification. So assuming you have that, as long as you put out bench No. 9 or what these homeless advocates are saying is, you know, put down the soup shelter, put down where you go.

O'REILLY: This looks to me like another opening for massive fraud.

KELLY: You think?

O'REILLY: Or something like that, yes.

KELLY: Well, we cover on this show people there's Ohio — there's people from New York who went to Ohio.

O'REILLY: Yes, we know that.

KELLY: And then went and rented out that house and registered. What's to stop them from coming back and saying oh, wait, I'm on bench No. 9. That's my actual home.

O'REILLY: The vote in Ohio one week before we all go to the polls is already tainted.

KELLY: Oh, absolutely.

O'REILLY: Ohio vote is in trouble.

WIEHL: Wait a second. You can't say under the Constitution that having a home is a prerequisite to voting.

O'REILLY: But you have to be able to prove...

WIEHL: Yes.

O'REILLY: ...that you are living in there.

WIEHL: Yes.

O'REILLY: And you are roaming around what street.

WIEHL: And don't forget…

O'REILLY: So maybe you have had a little ID card with you sleeping on the bench, something like that.

WIEHL: Maybe you should. But don't forget, a lot of these people have been made homeless very, you know, in the last few years.

O'REILLY: All right, you and Megyn can continue this conversation. I only have an hour here. You guys can go across and do whatever you want. All right, ladies, thanks very much.

Content and Programming Copyright 2008 FOX News Network, LLC. ALL RIGHTS RESERVED. Transcription Copyright 2008 ASC LLC (www.ascllc.net), which takes sole responsibility for the accuracy of the transcription. ALL RIGHTS RESERVED. No license is granted to the user of this material except for the user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon FOX News Network, LLC'S and ASC LLC's copyrights or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.